TESTIMONY OF KAY R. DALY

BEFORE THE HOUSE JUDICIARY COMMITTEE

SUBCOMMITTEE ON THE CONSTITUTION

THURSDAY, OCTOBER 10, 2002

Oversight hearing on “A Judiciary Diminished is Justice Denied: the Constitution, the Senate, and the Vacancy Crisis in the Federal Judiciary.”

Thank you, Chairman Chabot and Members of the Subcommittee, for inviting me to testify today on the cause and effect of the vacancy crisis in the federal judiciary.

My name is Kay Daly and I am the spokesperson for the Coalition for a Fair Judiciary. The Coalition for a Fair Judiciary is an organization comprised of more than 70 diverse grassroots groups dedicated to supporting qualified, capable federal judicial nominees who are committed to fair, impartial, and unbiased interpretation of existing law. We believe that judicial activism, characterized by rulings that create law rather than apply the law, has had a detrimental impact on American society and commerce. We seek to support federal judicial nominees who, in the words of Socrates, will “hear courteously, answer wisely, consider soberly and decide impartially.”

The Coalition focuses on all federal judicial nominees, including nominees to the Court of Appeals, U.S. District Courts, and the Supreme Court. The coalition we have managed to put together crosses ideological, racial and theological lines. One thing steadfastly holds us together – to see that the most qualified and self-disciplined judicial nominees who respect the protective limits of judicial restraint are confirmed to the federal bench.

First, let me state for the record that I am not an attorney. While that might be an applause line in many corners of this country, I find myself outnumbered in this hearing room today by attorneys at the top of their profession. Be gentle with me.

As a communicator who has experience in corporate, legal, political and crisis communications, I can assure you that no greater challenge has crossed my desk in recent years than the judicial nominations process. As one gains years of experience as a communicator, one learns that excellent communicators always try to tell the truth. For once truth is no longer a valuable commodity, once truth becomes buried by a ‘win at all costs’ agenda, we all suffer. And once venerable institutions like the judiciary suffer irreparable harm.

The judicial branch of government is not immune to injury. Once the public learns distrust, re-education is a long term and difficult endeavor. It’s not as if the bad guys are the only ones who lose. Everyone loses. The public does not distinguish between fact and fiction once fabrication reaches critical mass. Instead, the public just discounts everyone involved. Often the best actor wins.

For judges, the process of being nominated has become brutal. As you all are keenly aware, once a nominee starts down the confirmation path, he is essentially gagged until the confirmation hearing. The months, weeks, and for many of President Bush’s nominees, the years that pass before the confirmation hearing are marked by a well-orchestrated smear campaign marked by unfounded charges, ad hominem insults, red herrings, canards, personal attacks, innuendo and outright fabrications. Accusations from well-funded extreme liberal groups are bent, not on disclosing truth, but ensuring the preservation of an activist agenda by manipulating the composition of the most powerful branch of the federal government. Meanwhile, a beleaguered nominee and his family must endure the excruciating ordeal of watching helplessly as their family name is dragged through the mud.

Our parents probably told most of us that we can spend years building a solid reputation, but it takes only a few seconds to destroy it. What should any of us do when mean-spirited, perhaps even callous persons are the catalysts? Where is the recourse? How do we stop it?

Politicians sign up for political campaigning and all that it brings with it. Judicial nominees do not. Instead, they have spent a lifetime building extraordinary legal careers only to find that being called by their President to public service is an invitation to witness the destruction of all they have worked for. It means the destruction of their credibility, their integrity, and their reputation due to no fault of their own. They are persecuted simply because they were called by a President who didn’t represent a particular political platform.

One has to ask the question: at what point will the need for self-preservation outweigh the honor of serving the nation on the federal bench? Having witnessed the morass into which the confirmation process has devolved, we have arrived at the point contend, “I just won’t put my family through this.”

What scares me as a citizen is that the distortions aren’t just mistakes created by sloppy research. They are planned misstatements, deliberate omissions of fact, coming from our elected representatives as well as the self-interest groups that appear to be in control of our Senate Judiciary Committee. These folks actually seem proud of their efforts.

I find the lack of civility disgraceful and disrespectful not only to the people nominated but to American democratic institutions. How have we lost our conscience? How have we become this rude? How have we become indifferent to appropriateness and so disrespectful?

The Washington Post editorial page, which has written often and consistently on the judicial confirmation process, has similarly stated: “Failing to hold [hearings] in a timely fashion damages the judiciary, disrespects the president's power to name judges and is grossly unfair to often well-qualified nominees.” (November 30, 2001)

Effectively, the Senate has been hijacked by the political terrorism of extreme left wing groups like the ultra-liberal People for the American Way. Their goal is to preserve liberal judicial activism of the past and ensure further activism in the future. These groups are well funded, well organized, and they have the run of the Senate Judiciary Committee. People for the American Way enjoy funding from the Hollywood left and curiously, several media outlets. I wonder whether the Disney Company is aware of PFAW’s continual support and defense of Internet pornography and children’s access to it.

The modus operandi of People for the American Way and associated organizations is simple. It starts with an “investigation” of the nominee. They look for anything that can point to a one-word charge: racist, sexist, homophobe. If all else fails, the label can be “conservative” or any variation of that moniker.

Then, they trot out the self-proclaimed legal ethicists. Needless to say, these ethicists support the position of these organizations, clucking about how the sky will fall and justice as we know it will cease to exist if the nominee is confirmed. Curiously, though, these ethicists usually have an extensive history of supporting liberal causes and candidates. They leave a trail like an elephant with a nosebleed in the snow.

It is tough to perceive objectivity in an ethicist who was photographed on top of a car at Northwestern University protesting the Vietnam War as leader of the radical Students for a Democratic Society (SDS) surrounded by police officers. And yet, this describes a favorite ethicist used extensively by Ralph Neas, president of People for the American Way to discredit judicial nominees.

Another “objective” legal ethicist wrote an article for The Nation entitled “The Other Y2K Crisis” on July 26, 1999, in which he made his political sympathies entirely known while describing himself as “progressive.” In the article, he “objectively” wrote “My Y2K nightmare is that Republicans will win the White House and keep control of Congress.”

Despite all of this, our President has nominated judges at a record pace. The

President has now nominated 127 Article III judges to include 32 circuit, 94 district, and 1 International Trade judge. President Bush reached 100 nominations on May 1, 2002, faster than any President in history. At the same point in their terms, President Clinton had nominated only 77 judges, former President Bush had nominated 49, and President Reagan had nominated 61 judges.

The result of the political gamesmanship of Senate Democrats and their special interest allies is a vacancy crisis in the federal judiciary. In 1998, at a time when there were 50 judicial vacancies, Senator Leahy stated that the number of vacancies represented a “judicial vacancy crisis.”

As of today, there are 77 vacancies out of 862 authorized circuit and district court

judgeships, a 9% vacancy rate. The crisis has worsened substantially. Chief Justice

Rehnquist’s recent year-end report on the judiciary labeled the current situation as an

“alarming number of judicial vacancies.”

The Judicial Conference of the United States has classified 30 of the current

vacancies as “judicial emergencies.” The President has 21 individuals nominated to fill a seat designated as a judicial emergency.

The 13 circuit courts of appeals, the courts of last resort in the vast majority of federal cases, face a particular crisis with 27 vacancies out of 179 authorized judgeships, an extraordinary 15.1% vacancy rate. The vacancy rate is an especially serious problem in light of the enormous caseload: Filings in the courts of appeals reached an all-time high last year and have increased 22% since 1992.

Wallace D. Riley, former president of the American Bar Association and the State

Bar of Michigan, wrote to Senator Leahy on February 13, 2002:

“I am writing to express my concern that the U.S. Circuit Court[s] of Appeals, the courts of last resort in the vast majority of federal cases, face a particular crisis with . . . [an] extraordinary 19% vacancy rate. . . .”

“I share Chief Justice Rehnquist’s concern about the effect continual delays are having on our judicial system. Our Judiciary is already overburdened by its current caseload and further delays could potentially place the federal appellate system on life support.

“Numerous businesses and citizens are waiting for cases to be decided that

may have substantial effects on their financial and personal futures. Having the

resolution of their cases continuously delayed is unjustly punishing these

litigants.

“I urge you to heed President Bush’s call and act not as Republicans and Democrats, but as Americans. It is time [for] the Senate act for the good of our judicial system.”

The Sixth Circuit Court of Appeals, covering Kentucky, Michigan, Ohio,

and Tennessee, is operating at just over half strength, with 7 vacancies on a 16-judge court. In March 2000, at a time there were 4 vacancies on that court, Chief Judge Merritt of the Sixth Circuit wrote to the Senate Judiciary Committee about the crisis: “The Court is hurting badly and will not be able to keep up with its work load. . . . Our Court should not be treated in this fashion. The public’s business should not be treated this way. The litigants in the federal courts should not be treated this way. . . . The situation in our Court is rapidly deteriorating due to the fact that 25% of the judgeships are vacant.”

The D.C. Circuit Court of Appeals, which other than the Supreme Court is

often considered the most important federal court in the Nation because of the constitutional cases that come before it, is operating with a third of its judgeships vacant (4 vacancies on a 12-judge court).

The caseload in the federal courts can be expected to increase further as a result of the war on terrorism, as well as other criminal and civil matters that arise out of the September 11 attacks.

The President has 7 nominees pending to the 6th Circuit, and 2 nominees pending to the DC Circuit. Three of these nominees (Jeff Sutton, Deborah Cook, and John Roberts) have been waiting since May 9th of 2001 for a hearing.

The President has acted decisively in response to the vacancy crisis, but the

Senate has not. The current pace of Senate confirmation is unacceptable, particularly as to circuit judges, and is far slower than in analogous circumstances in the past. In the first year of President Bush’s term in office successful nominees took an average of 112 days from nomination to confirmation. In the first year of President Clinton’s presidency it was an average of 52 days between nomination and confirmation.

Despite the President’s record pace of nomination, the number of vacancies has

actually increased due to the Senate’s slow pace of confirmation, which has not even kept up with judicial retirements. At the end of the 106th Congress there were only 67 vacancies, and on the day President Bush was inaugurated there were 82. Now, there are 77 vacancies.

To date, the Senate has confirmed only 14 of the President’s 32 circuit court nominees (44%). By contrast, President Clinton had 19 of his 22 circuit nominees confirmed by the same date (86%).

At the least, it would seem the Senate should strive to treat President Bush’s

nominees the same way President Clinton’s judicial nominees were treated in his second year in office. President Clinton had 100 Article III judges confirmed in the second year of his presidency. President Bush’s second year has seen only 52 Article III confirmations.

Notwithstanding the vacancy crisis, the Senate voted on only 28 of the President’s

66 nominees in President Bush’s first year in office (42%). Notwithstanding the especially serious vacancy crisis in the circuit courts of appeals, the Senate confirmed only 6 of the President’s 29 circuit nominees (21%).

In President Bush’s first year the Senate voted on only 24 of the 44 nominees who

were nominated before the August recess of 2001. That is a sharp departure from the Senate’s traditional practice with respect to first-year nominees of a new President. In the first year of the past three Administrations, all but one of the nominees who were nominated before the August recess were voted on and confirmed in the first year of the Presidency.

The Senate’s treatment of the President’s first 11 nominees illustrates the Senate’s

delay. On May 9, 2001, at an event in the East Room, the President announced the

nomination of 11 judges – including 8 nominees for judicial vacancies classified as

emergencies” by the Judicial Conference of the United States. All 11 nominees

subsequently received a “well qualified” or “qualified” ABA rating. In March 2001,

Senator Leahy referred to the ABA rating as the “gold standard” for evaluating judicial

nominees.

More than a year has now passed since those nominations, yet the Senate

Judiciary Committee has not even held hearings for 4 of the 11 nominees. As the Washington Post editorial page stated almost exactly one year ago, “[t]he Judiciary Committee chairman, Democratic Sen. Patrick Leahy, has offered no reasonable justification for stalling on these nominations.” (November 30, 2001)

The impact of Senate foot-dragging on Americans’ lives and the judicial system at large is hard to overstate. As Lloyd Cutler, President Clinton’s White House Counsel, and former Congressman Mickey Edwards, wrote in the Washington Post, “Delay in confirming judges means justice delayed for individuals and businesses, and, combined with the bitter nature of some confirmation battles, it may deter many qualified candidates from seeking federal judgeships.” (March 13, 2002)

Judicial nominees deserve a prompt hearing and vote in the Senate. On May 9, 2001, the President made the following request of the Senate: “I urge Senators of both parties to rise above the bitterness of the past, to provide a fair hearing and a prompt vote to every nominee. That should be the case for no matter who lives in this house, and no matter who controls the Senate. I ask for the return of civility and dignity to the confirmation process.”

During the 2000 presidential campaign, Senator Leahy stated: “I have said on the

floor, although we are different parties, I have agreed with Gov. George Bush, who has said that in the Senate a nominee ought to get a vote, up or down, within 60 days.”

In his recent year-end report on the judiciary, the Chief Justice of the United

States emphasized the same principle: “On behalf of the Judiciary, . . . I ask the Senate to

schedule up or down votes on judicial nominees within a reasonable time after receiving

the nomination.”

In June 1998, at a time when there about 75 vacancies, Senator Daschle stated:

“We cannot wait for the judicial system to collapse before the Senate acts.” He asked for the Senate to “significantly accelerate the pace of scheduled judicial confirmations.”

In July 1998, at a time when there were 68 vacancies, Senator Leahy stated:

“Those who delay or prevent the filling of these vacancies must understand that they are delaying or preventing the administration of justice. Courts cannot try cases, incarcerate the guilty or resolve civil disputes without judges.”

The devastating effects of the judicial vacancy crisis can most readily understood by the almost half empty Sixth Circuit Court of Appeals. Those judges remaining on the court have displayed remarkable affinity for judicial activism, with a liberal bent that rivals the now infamous Ninth Circuit.

Recently, the Sixth Circuit Court of Appeals issued a 5-4 opinion in Grutter v. Bollinger, which upheld the University of Michigan Law School’s policy of considering race and ethnicity in admissions decisions. While the legal basis for the decision is controversial, even more troubling are the claims by a minority of the court’s members that the Chief Judge (a Carter appointee) violated procedural rules in making the panel assignment in the case and in failing to circulate the plaintiffs’ en banc court petition to the full court in a timely manner.

Both procedural abnormalities could have affected the outcome of the case and raise questions about whether the Chief Judge and others on the court have sought to take advantage of the Sixth Circuit’s vacancy crisis and the Democrats’ current 6-3 majority.

In August 1999, a three-judge panel of the Sixth Circuit consisting of two circuit judges and a visiting senior district judge decided a procedural issue in Grutter without reaching the merits of the lawsuit.

After the first appeal and before the filing of the second appeal, the Chief Judge inserted himself into the original panel-- replacing the visiting senior district court judge-- a practice which the Chief Judge apparently has engaged in on a regular basis outside of the knowledge of some members of the Sixth Circuit. This new three-judge panel then heard several interlocutory motions in the case, which were redirected to it by the court’s motions panel.

When the case came back to the Sixth Circuit on its second substantive appeal, court rules required either that the original panel hear the appeal or that the appeal be randomly assigned to a new three-judge group: the so-called “must panel” rules. By assigning the case to the improperly constituted panel containing the Chief Judge, the court followed neither rule in this case.

In addition, upon return of the case to the Sixth Circuit, only two of the three original judges on the panel were available to hear the next appeal. The court’s rules then required that the court fill out the panel by random assignment. Instead of following that rule (and without the knowledge of other members of the court), the Chief Judge remained on the panel to hear the substantive appeal.

On May 14, 2001, plaintiffs in this case requested that the entire Sixth Circuit hear their appeal. At this time, the court consisted of eleven active judges, including two Republican appointees who had previously announced their intention to take senior status in the coming months.

On June 4, 2001, the Chief Judge issued an order stating that the motion for an en banc hearing had come before the court, but that the court would hold the petition in abeyance until after the filing of the briefs. After the briefs were filed, the court would determine whether to submit the case to the en banc court or to a three-judge panel. Neither this order, nor the petition were circulated to the entire court.

On June 18, 2001, the appellees filed their brief, but the court again failed to submit the en banc petition to the whole court. On July 1, 2001, one of the Republican appointees took senior status, and all briefing on the case was completed by the end of the month. Still, the Chief Judge failed to circulate the en banc petition to the court.

On August 15, 2001, the second Republican appointee took senior status, leaving the Court with its current 6-3 Democrat majority and with a 5-4 majority to uphold the University of Michigan policy. Nonetheless, the Chief Judge eight days later referred the petition to the improperly constituted three-judge panel.

Some five months later, and after questions were raised about the composition of panel, the Chief Judge notified the court of the existence of the en banc petition. At this point, the court had been reduced to nine members, including six Democrat-appointed judges.

This is not the first time that the Sixth Circuit has engaged in apparent procedural abnormalities. In a 2001 death penalty habeas case, the court made an unusual and unprecedented procedural ruling which allowed it to bypass the decision of a three-judge panel to deny habeas relief to a convicted capital murderer.

In In re John Byrd, 269 F.3d 585 (6^th Cir. 2001), after a three-judge panel denied a defendant’s motion to file a second habeas petition, a majority of active judges on the Sixth Circuit voted to remand the case to district court for the development of a factual record to permit the en banc court to consider sua sponte the defendant’s second habeas petition.

The Court also remanded the case to the Chief Judge of the Southern District of Ohio for appointment of a Magistrate Judge, rather than ending it back to the District Court judge to whom it was originally assigned pursuant to the court’s “blind draw” rules.

According to one dissenting judge in the case, this action by the Sixth Circuit was “lawless” and without support in 28 U.S.C. §2254, the federal habeas corpus statute enacted pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA).

According to the dissent, the en banc court essentially “fired the [three-judge] panel and [took] over the case sua sponte” and “unlike any habeas corpus case to ever come before this Court...the en banc court will not act as a reviewing body of the panel, but will become the panel itself.” 269 F.3d585, 598 (6^th Cir. 2001).

Has the response of the United States Senate been to rapidly confirm the President’s nominees to the Sixth Circuit? No. Instead of “advise and consent,” the process has deteriorated into “admonish and obstruct.” Effectively, while the Senate fiddles, the Sixth Circuit burns.

There has been a flurry of activity on one front in the Senate Judiciary Committee. In a blatant attempt to remake the “advise and consent” role of the United States Senate, New York Senator Charles Schumer has held several hearings on the role of ideology in the confirmation process. He has been an outspoken proponent of ideological litmus tests. These hearings at best have been the source of further delay and at worst, seek to compromise the very independence of the third branch of government, the federal judiciary. But for those of you who subscribe to litmus tests, would any of the following brilliant legal minds have been confirmed under those guidelines?

As Attorney General of the State of Kentucky, he prosecuted a Union general for the then “crime” of helping slaves to escape. Kentucky v. Palmer, 65 Ky. (2 Bush.) 5 (1886). Who was he? The first Justice John Marshall Harlan, who, once on the bench, wrote the famous dissent in the Plessy v. Ferguson arguing against “separate but equal.”

Prior to ascending to the bench early in the last century, he had become a millionaire twice over and had many big businesses as clients. In 1902, he proposed taking immunity from suit away from unions: “If unions are lawless, restrain and punish their lawlessness; if they are arbitrary, repress their arbitrariness.” In an 1899 brief to the Supreme Court on behalf of a shoe industry monopolist, he argued that “in certain things we have got to have a monopoly.” Seven past presidents of the ABA signed a petition declaring that he “is not a fit person to be a Member of the Supreme Court of the United States.” Who was he? The great liberal justice, Louis Brandeis.

As a lower court judge, in 1927 he held that evidence obtained through an illegal search and seizure was admissible in a criminal proceeding. In doing so, he rejected a growing line of federal decisions that were at variance with his opinion. His attitude was that “a room is searched against the law and the body of a murdered man is found. The privacy of a home has been infringed and the murdered goes free. We may not subject society to these dangers.” Who was he? Benjamin Cardozo.

Consider this fellow, a liberal’s dream nominee. He helped found the ACLU, was a legal adviser to the NAACP, wrote editorials in the New Republic and the Atlantic Monthly. Who was he? Felix Frankfurter, who turned out to be one of the great strict constructionist justices once on the Court.

According to the ultra liberal group Alliance for Justice, this Supreme Court Justice has “has proven to side with the liberal bloc on most issues. [He] has consistently voted for women's right to choose whether to abort, and he joined the majority in Stenberg v. Carhart, finding Nebraska's ban on partial-birth abortion unduly burdensome. [He] also supports affirmative action and the strict separation of church and state. He voted in the minority of three in Mitchell v. Helms, holding that loans of federally funded equipment to parochial schools violated the Constitution. He supports the extension of the protection from discrimination against minorities and women to homosexuals.” Yet when this Supreme Court Justice was nominated, the Left screamed like scalded cats calling him a “stealth candidate.” Who is he? Justice David Souter.

A lot of the groups claiming to represent the public interest are just plain extreme left wing groups who will say or do anything to push their narrow agendas. They are extremists, yet the Senate Judiciary Committee is listening to them and quashing nominees at their request.

As a single example, let’s look at just one group that has exercised significant influence in quashing a number of Bush nominees. Americans United for the Separation of Church and State is headed by Barry Lynn, a Unitarian minister. The group claims to be a watchdog, here to save us all from the improper entanglement of church and state.

Of course, if there is a Christmas cresh or a menorah or a Christmas tree displayed anywhere on public property, rest assured Americans United will be there to file a suit to have it removed.

And the group backed a lawsuit against the mention of God in the Ohio state motto.

They have a particular problem with the national motto, “In God we Trust.” When a Colorado school district decided to hang the motto in classrooms, Barry Lynn sneered, stating “I find it hard to believe that Colorado parents want their children’s schools run by remote control by a fundamentalist preacher in Tupelo, Mississippi.” (Stephanie Salter, Colorado’s Godly Idea, Tulsa World, July 23, 2000.) Lynn is a little unclear on this point, since he’s also said that the motto is meaningless when it is used on money; but that if children are exposed to the motto in public schools, it is dangerous because it is “a different and new use for promotion of religious ideas.” (Michael Janofsky, Colorado Asks: Is “In God We Trust” a Religious Statement?, NY Times, July 3, 2000.)

Presumably, Americans United opposes the national anthem as well, since one of the later verses contains that motto as a lyric.

And remember when the members of Congress stood on the Capitol steps last year following the attacks, and sang “God Bless America”? Americans United has said that “this flagrant mixing of church and state is inappropriate.” (http://www.au.org/press/pr090502b.htm (Americans United Press Release)) Moreover, they argue, it’s “divisive.” (Stephen Scott, Faith & Flag, The State, Columbia SC, November 9, 2001 (quoting Barry Lynn)).

In their effort to save us from God, Barry Lynn and his group have been some of the most outspoken opponents of a number of Bush nominees, including Attorney General John Ashcroft, and Professor Michael McConnell.

Barry Lynn told us back in 2000 that if John Ashcroft was confirmed as Attorney General, he would "take orders from extreme TV preachers and their political allies in the Religious Right". (Waveney Ann Moore, God Bless America – Right?, St. Petersburg Times, November 10, 2001.) We were additionally informed that Mr. Ashcroft’s comments criticizing various Supreme Court decisions were the type of opinions normally found only among “religious extremists and anti-government militias.” (http://www.au.org/press/pr11601.htm)

More recently, Americans United is telling us that Congress’s nearly unanimous outcry over the 9^th Circuit’s recent decision which banned the Pledge of Allegiance from public recitation, was mere “hysteria”. (http://www.au.org/churchstate/cs7023.htm)

Barry Lynn also led a campaign against the saying of an ecumenically approved prayer at Chicago’s September 11^th memorial service a few weeks ago. Barry Lynn and Americans United are clearly advocating the removal of any vestige of religion from public life.

But that’s not the half of it.

At the same time, Barry Lynn and Americans United are trying to use the government, usually the courts, to attack religion wherever they find it. The group appears to believe that any government sale of land to a religious group is an illegal establishment of religion, and they fight such sales with lawsuits.

They are attempting to use the federal courts to force Baptist foster homes in Kentucky to hire homosexual staff. (http://www.aclu.org/about/transcipts/revlynn.html)

They want the courts to force the Catholic Church to pay for contraceptives, presumably including abortions, for its employees. (http://www.au.org/churchstate/cs/7023.htm) There’s no word yet on whether they will sue to force Jewish kosher delis to serve ham sandwiches.

In a recent case, Americans United lost its bid to make the government treat religiously oriented schools differently from purely secular schools when issuing grants. Americans United argued that treating a religiously oriented school the same under the law as a secular school would violate the Establishment Clause. Fortunately, Americans United lost. Otherwise currently religious schools like Notre Dame, or former divinity schools such as Yale, Harvard might face losing federal grants, scholarships and aid money that supports students and funds research.

Barry Lynn is also on record as opposing the use of “taxpayer funds for chaplains”, including military chaplains. (http://www.aclu/org/about/transcripts

/revlynn.html) I wonder if we can truly imagine our sons and daughters facing battle in the Middle East, without the benefit of spiritual counsel?

I don’t think it matters whether you’re a Democrat or Republican, I believe you’d concede that Americans United presses an extremist agenda. To advance its position, Americans United needs a federal judiciary that is enthusiastic about its radical beliefs, a court that essentially willing to trump Congress and write law.

That’s why they oppose President Bush’s judicial nominees. The Bush nominees who are judicial conservatives (regardless of their personal opinions), could not in good conscience usurp the power of the legislature the way Barry Lynn and Americans United want them to do.

The advice and consent process in the Democrat controlled Senate has been captured by the most extreme elements of the Democrat base.

Their control over the Democrats on the current Senate Judiciary Committee is bold. Ralph Neas’s People for the American Way has been extremely active in targeting highly qualified Bush nominees, as has the National Abortion Rights Action League, the Leadership Conference on Civil Rights, the National Organization for Women, Alliance for Justice and the list goes on. Their vitriolic message points are robotically repeated by Democrat senators in nomination after nomination.

These groups meet regularly to plot against targeted nominees. “Research” is conducted with an eye to “gotcha” politics. Funding pours in from unions, Hollywood and trial lawyers. More “research staff” is hired. Reports on judicial nominees laced with message points are formulated and distributed. As if by magic, these message points bounce from the various websites of these organizations to echo in the marathon questioning of judicial nominees by Democrats during confirmation hearings to finally land in the pages of The New York Times. If the end results weren’t so catastrophic to our judicial system, this well-oiled machine would be a thing of beauty.

If this pattern continues, we may as well just abandon historic constitutional fences. The laws you pass here in Congress will mean nothing, because the activist judges will feel compelled to rewrite them, as the mood or the agenda strikes them.

Meanwhile, constitutional conservatives have been consistent on their view of the Senate’s role in the confirmation process. Thirty years ago, Barry Goldwater wrote “The President of the United States should be given broad leeway in choosing judicial nominees who might reflect the same broad philosophy as his own on major matters of the day. So long as a nominee is a man of high ability, scholarship, integrity and diligence, without any significant conflict of interest in his past record, he should be confirmed by the Senate.” (68 ABA Journal 135 Feb. 1972).

It is ironic that those Bush judicial nominees so stridently opposed by left wing organizations are strict constructionists who would not meet judicial activism with judicial activism. These are judges who will apply the law as they find it rather than stretching the Constitution like a rubber band to fit the political agenda of the day.

Most Americans might not know the difference between a federal court and a tennis court, but they do know, thanks to the Ninth Circuit Court’s Pledge decision, that something is terribly, terribly wrong in the judiciary.

I am a mom – a stay-at-home mom. I have a beautiful 18-month old boy and have another child on the way. It doesn’t take long after the birth of your first child to figure out what is really important in this life. This nation has given my family much, and every generation of my family has felt indebted and has answered the call to service whether it be on a battlefield, in the political process, or simply as a decent citizen who contributes to the betterment of society. I can think of no better tribute to either those that have gone before me or generations to follow than preserving the legacy of a nation that has a court system intact with the rule of law paramount to all involved.